The Indecent Representation of Women (Prohibition) Act of 1986 will be updated to include online media in its scope, the Times of India reports. The IRWA was originally introduced to curb demeaning representations of women in mainstream media like print publications. The Act essentially forbids objectification of women and their depiction in a way that is “likely to deprave, corrupt or injure the public morality or morals. The UPA government first recommended this amendment, and introduced an updated Bill of the IRWA in 2012 to do it.

The government said in its release that a “Centralized Authority” will be created to process cases under this law. The members of this authority are: a member from the National Council for Women; a Press Council of India representative; an I&B Ministry bureaucrat; an Advertising Standards Council of India representative; and “one member having experience of working on women issues”. The release specifically points to “over-the-top (OTT) services” like Instagram, WhatsApp, Skype, Viber, and Chat On, which will soon be subject to this law.

The penalty for this law will be similar to that provided by the IT Act, the Women and Child Development Ministry said. That could mean stiff penalties and jail time, if the list of penalties under the IT Act is any indication.

MediaNama’s take

This can backfire. It’s happened before.

While the draconian Section 66-A is no longer around, other parts of the IT Act still give the government a broad mandate to bring cases against people who it deems to be spreading ‘obscene content’.

While the IRWA has been mostly aimed at regulating mainstream media, India hasn’t had a perfect record on that front either. In this Caravan piece, the author Rosalyn D’Mello brings up the example of a Wild Stone ad where a woman in a train has a risqué fantasy of dominating a co-passenger. The I&B Ministry banned the ad, citing a 1994 cable TV rule that reads very similarly to the IRWA — right down to the morals and the decency. This, in spite of the fact that it was the woman who was having the fantasy and effectively the power over the (imaginary) situation. There are multiple other ads that have been banned on the same grounds.

It’s important to ask — is this what the government wants to prevent? Women having power and sexual agency? As D’Mello points out, “Ads that truly objectify women try to push them into seeking to become desirable girls and dutiful wives and mothers, and, not least, more deserving of men (most of them in desperate need of deodorants).”

Hopefully the IRWA’s way of processing these complaints will be a little more transparent and beneficial to the interests of the women it seeks to protect from harmful depictions. Now that this law will also apply online, it’s much more important to introspect on the wide range of powers the government gives itself with vaguely worded legislation like the IT Act and cable TV content rules. As has happened in the past, the exact opposite outcome could be the consequence of such laws.

There is a problem

This is all not to say that the WCD Ministry is encroaching onto the internet with a censorious motive. Just like the internet has acted as a conduit and platform to the spread of communal hatred in India, it is also a breeding ground for things like rape videos and revenge porn. Governments all over the world struggle to deal with these problems, as do societies as a whole. It is important to have robust legislation and investigative acumen for these technologies as they evolve. While the existence of these behaviours may be inevitable, the ability of law enforcement and legislation to be specific and useful is not. And that is where the government needs to improve its approach.

What happens to the intermediaries?

While the cable TV rules apply to operators, who will the updated IRWA apply to? Will it be used to prosecute users or platforms? The answer to this remains unclear. The Shreya Singhal judgement is a victory for intermediaries — it decided that a court ruling is required under Section 79 of the IT Act for an intermediary to be held responsible for content that they don’t remove immediately. But it’s unclear if the IRWA will continue those protections, or if current laws protect intermediaries and platforms sufficiently from liability. Protecting intermediaries from responsibility for third party content is important since it ensures that they are not incentivized to censor content proactively or pre-censor in a bid to evade liability.

The government has also not clarified the precise penalties that violations of this law will bring. Proportional penalties are incredibly important so that laws are not weaponized for political or personal purposes by law enforcement and prosecutors. It’s also important in preventing the chilling of speech — if weighing the risk of speech involves an unfairly lengthy jail term or a heavy fine, it will discourage both individuals and platforms from free expression.